IMBARDELLI & IMBARDELLI

[2020] FamCA 876

FAMILY COURT OF AUSTRALIA

IMBARDELLI & IMBARDELLI [2020] FamCA 876

FAMILY LAW – CHILDREN – PROPERTY SETTLEMENT – Where previous consent orders have been set aside under s79A of the Family Law Act – Where both property and parenting arrangements resolved by consent – Where it is nonetheless appropriate to record why these orders are in the best interests of the children and just and equitable – Where the family report finds there has been alignment by the children with the father and strong rejection of the mother – In light of this significant rejection of the mother, the family report recommends for there to be no contact with the mother until and if the children request such contact – Where both parents consent to orders in accordance with the recommendations of the family report writer – Where the agreed property settlement affords the wife an amount at the bottom end of the range which can be considered just and equitable – Where the wife consents to this on the basis that the father has financial responsibility for the three children and she wished the children to have the greater benefit of the remaining assets.

Family Law Act 1975 (Cth)

APPLICANT: Ms Imbardelli

FIRST RESPONDENT: Mr Imbardelli

SECOND RESPONDENT: Mr I Imbardelli

THIRD RESPONDENT: K Pty Ltd

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 8876 of 2009

DATE DELIVERED: 5 November 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: McEvoy J

HEARING DATE: 5 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hutchings

SOLICITOR FOR THE APPLICANT: AMT Legal

COUNSEL FOR THE FIRST RESPONDENT: Mr Sheen

SOLICITOR FOR THE FIRST RESPONDENT: Macpherson Kelley

SECOND RESPONDENT: Mr I Imbardelli

THIRD RESPONDENT: Mr I Imbardelli

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lonergan

Orders by Consent

Parenting

1. All previous parenting orders are discharged.

2. The parties have equal shared parental responsibility for the children D born … 2008, F and E both born … 2009 (“the children”).

3. The children live with the father.

4. The children spend time and communicate with the mother by agreement.

5. The father do all things necessary to facilitate any one of, or all the children communicating and/or spending time with the mother by agreement or upon any request by the children, or any of them and in the event that the children make such a request, the father notify the mother forthwith.

6. The father enrol in and complete a Parenting Orders Program and provide a Certificate of Completion to the mother.

7. The father to advise the Independent Children’s Lawyer of the details of the Parenting Orders Program into which he has enrolled and the Independent Children’s Lawyer is permitted to provide to the Parenting Orders Program convenor copies of the Family Reports prepared by Ms CC dated 8 December 2017 and 25 March 2019 and the Family Report prepared by Ms DD dated 9 September 2020 and a copy of this order.

8. The father will comply with all reasonable directions as made by the convenor of the Parenting Orders Program as he/she considers necessary to facilitate the successful completion of the Parenting Orders Program and will further comply with any recommendations made by the convenor of the program that the father engage in further counselling or therapy upon the conclusion of the Parenting Orders Program as is considered necessary to further assist the father to address the issues raised in respect to him in the Family Reports.

9. The mother continue to engage with a treating Psychiatrist and follow their reasonable advice.

10. The father:

    (a)advise the mother as soon as practicable in the event that any of the children suffer any serious illness or injury;

    (b)authorise any medical, dental or any other allied health professional upon whom the child/children attend to communicate with the mother in respect of the child/children’s medical or other health conditions and/or requirements and provide copies of any documents that are ordinarily available to parents.

11. The mother be permitted to provide a copy of these orders to the children’s school and treating medical and other allied health professionals.

12. The father keep the mother advised at all times of the children’s residential address and mobile telephone numbers and notify the mother in writing within 7 days of any change to any of these details.

13. The parties keep the other advised at all times as to a current email and mobile telephone number upon which they can be contacted, together with the address/es where the children live and/or spend time on a regular basis.

14. The father do all such acts and things necessary and sign all such documents to authorise and instruct the school at which the child/children attend to provide to the mother the following:

    (a)copies of school reports and photograph order forms; and

    (b)copies of notices, newsletters and documents normally provide to parents including any access to school portals,

    (c)and this order act as direct authority for the provision of same to the mother in the event the father does not otherwise so authorise.

15. The mother is at liberty to attend at:

    (a)the children’s schools for all events that parents are routinely invited to attend including but not limited to parent teacher interviews, sporting events, and school productions; and

    (b)extra-curricular activities that are routinely attended by parents such as tournaments and recitals,

    provided that she not directly approach the children or any of them unless agreed between the parties NOTING THAT the children or any of them may approach her if they so choose.

16. The mother be at liberty to send letters, emails, cards and gifts to the children on special occasions and the father ensure they are provided to the relevant child/ren when they arrive.

17. The Independent Children’s Lawyer explain the final orders to the children within 30 days of the date of the orders made and the father do all acts and things required to facilitate same.

18. The father ensure the Family Report dated 9 September 2020 be provided to any counsellor, psychologist or psychiatrist that engages with the children or any of them and he be at liberty to also provide the reports by Ms CC dated 8 December 2017 and 25 March 2019.

19. The mother be at liberty to provide any or all of the Family Reports referred to above to any counsellor, psychologist or psychiatrist upon whom she attends.

20. Each party, by themselves or their servants and agents, be restrained from:

    (a)abusing, insulting, belittling, rebuking or otherwise denigrating the other to, or in the presence of, or within the children and/or allowing the children to remain in the presence of, or within the hearing of any third party engaging in such behaviour;

    (b)discussing these proceedings, and/or negotiations about parenting with or in the presence of the children, and/or allowing the children to remain in the presence of, or within the hearing of any third party engaging in such behaviour save for explaining living and contact arrangements pursuant to these Orders; and

    (c)showing to, or leaving accessible to the children any document connected with these proceedings including any electronic documents.

21. The appointment of the Independent Children’s Lawyer be discharged following the meeting with the children as provided for in order 17 hereof and upon her providing documents to the convenor of the Parenting Orders Program as provided for in order 7 hereof.

Property

1. All extant property and spousal maintenance Orders be and are hereby discharged.

2. Within 7 days the entirety of the funds held by GG Lawyers on trust for the parties (currently approximately $423,000) be paid to the Wife.

3. Within 60 days (“the date”) the Husband pay the Wife the further sum of $244,000 (which together with the funds in paragraph 2 are “the payment”) and failing payment in full being made by the date, interest accrue on such unpaid amount as provided for in the Family Law Rules 2004 and such interest be included in the payment for the purpose of these Orders.

4. In default of the whole of the payment being made by the date, within 7 days of the date the Husband elect in writing as to which of the following real properties be sold to meet the amount outstanding on the payment, together with default interest:

   (a)AA Street, BB Town in the State of Victoria; or

   (b)B Street, Suburb C in the State of Victoria.

   and in default of such nomination, it be the B Street property

   (“the real property”).

5. The Husband may only nominate the AA Street property:

   (a)upon the written advice of his accountant that he may then make the payment to the Wife lawfully free of any tax, penalty or other restriction with regard to relevant legislative requirements including but not limited to superannuation legislation and regulations, and upon such advice being provided to the Wife’s solicitor;

   (b)if the payment to the Wife not be by way of superannuation split and such payment be free of tax, penalty, liability or restriction of any kind in the hands of the Wife.

6. In the event of the whole of the payment not being made by the date, the real property be placed on the market for sale within 21 days of the date and thereafter sold - and the Wife have the sole conduct of the sale including without limitation:

   (a)the right to nominate and appoint the selling agent and provide all instructions to said agent;

   (b)the right to nominate the Reserve price provided that such nomination is on the written advice of the selling agent and conveyed to the Husband;

   (c)the right to choose the method for sale on the advice of the selling agent;

   (d)the right to accept or reject offers to purchase;

   (e)the right to nominate any conveyancer and/or solicitor to be involved in the sale on behalf of the vendor;

   (“the sale”).

7. The Wife inform the Husband as to the selling agent and solicitor/conveyancer appointed in relation to the sale and provide them with authority to release all information relevant to the sale to the Husband.

8. The Husband and K Pty Ltd do all acts and things and sign all documents required to affect the sale in a timely manner, including provision of all documents and/or instructions to any professional appointed to act in the sale

9. The proceeds from the sale of the real property be applied as follows:

   (a)first, to meet the costs and commission of the sales;

   (b)secondly, to discharge any encumbrance secured by the real property;

   (c)thirdly, to reimburse any costs incurred by the Wife in compliance with paragraph 6 herein, to the Wife;

   (d)fourthly, to meet any amount of the payment outstanding to the Wife, together with penalty interest calculated in accordance with the Family Law Rules 2004;

   (e)lastly, the balance to the legal owner of the property.

10. Upon the whole of the payment being made in full, the Wife cause all caveats lodged by her or on her behalf over any of the properties of the parties to be withdrawn.

11. The Husband and K Pty Ltd be jointly and severally liable for paying and do indemnify the Wife and keep her indemnified as to any and all liabilities including taxation liabilities, past present or future which have arisen or may arise from:

    (a)the sale, and distribution of proceeds from the sale of the real property pursuant to these orders;

    (b)the operation of the Imbardelli Superannuation Fund including without limitation that which may arise from his choice to make any portion of the payment to the Wife from the proceeds of sale of the AA Street property;

    (c)the operation of the Imbardelli Family Trust including without limitation that which may arise from his choice to make any portion of the payment to the Wife from the proceeds of sale of the B Street property and/or any distribution or loan in the Wife’s or any of their children’s names;

    (d)the operation of any entity in which the Husband has any interest including without limitation any distribution or loan in the Wife’s or any of their children’s names

12. There be a general liberty to apply in relation to the sale of the real property and as to the nomination provided for in paragraphs 4 & 5 herein.

13. The Husband indemnify the Wife and keep her indemnified against any claim whatsoever that arises from any act, omission or debt occurring up until the date of this order where the claim is brought by a member of his family including but not limited to the second respondent (Mr I Imbardelli), Ms Z Imbardelli, Ms Todd, Mr M or Ms G Imbardelli or any of their entities.

14. The Second Respondent’s Application contained within his Response to an Initiating Application filed 6 March 2020:

    (a)be dismissed in so far as it sought any payment from the Wife, or sought to make any claim as against the proceeds from the sale of the Suburb J property;

    (b)be withdrawn with the leave of the Court in so far as it sought repayment of monies allegedly owed by the Husband NOTING THAT the Husband agrees that the application has not been heard on its merits and the Second Respondent may bring such action in another jurisdiction if he so chooses.

15. Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:

    (a)each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these orders;

    (b)any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears, any joints account shall be divided equally;

    (c)each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;

    (d)all insurance policies are to become the sole property of the owner named hereon;

    (e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

    (f)any joint tenancy of the Husband and Wife in any real or personal estate is hereby expressly severed.

16. All parties sign all documents and do all acts and things necessary to facilitate these Orders, including for the sale/s of real properties, failing which then a Registrar of the Melbourne Registry of the Family Court of Australia is hereby appointed under section 106A of the Family Law Act 1975 (Cth) to sign or execute such necessary sale documentation on behalf of the defaulting party upon lodgement of such documentation and the filing of an affidavit of a solicitor on behalf of the Wife as to the said failure.

17. All extant applications be otherwise dismissed, specifically including the Wife’s application for ongoing spousal maintenance and any outstanding applications for costs, whether reserved or not.

IT IS DIRECTED

1. That the Minute of Consent Orders remain on the Court file.

AND THE COURT NOTES

A.That pursuant to s 81 of the Family Law Act 1975 (Cth), the parties intend these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

B.The parties agree that the Wife will cause an Application for divorce to be filed within 30 days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Imbardelli & Imbardelli has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8876 of 2009

Ms Imbardelli

Applicant

and

Mr Imbardelli

First Respondent

and

Mr I Imbardelli

Second Respondent

and

K Pty Ltd

Third Respondent

and

Independent Children’s Lawyer  

REASONS FOR JUDGMENT

Introduction

1. The parties to these proceedings are the applicant wife, Ms Imbardelli, the respondent husband, Mr Imbardelli, the second respondent, Mr I Imbardelli (Mr I Imbardelli), who is the husband’s brother, and the third respondent, K Pty Ltd is the trustee of the Imbardelli Family Trust and of the husband’s self-managed superannuation fund. The husband and Mr I Imbardelli are directors and shareholders of K Pty Ltd. The proceedings concern both property and the parenting arrangements for the three children of the marriage, D born in 2008, and F and E, twins, born in 2009 (collectively, the children).

2. The matter has a long and unfortunate history. The wife filed an Initiating Application in the Federal Magistrates Court of Australia on 2 October 2009. In circumstances which were subsequently the subject of scrutiny in this Court, both final parenting and property orders were made by consent in 2010.

3. On 28 August 2017 the wife filed an Initiating Application in the Federal Circuit Court of Australia. This application was amended on 1 September 2017 to seek, inter alia, that the previous parenting orders be set aside, that the parties have equal shared parental responsibility for the children, that the children live with the mother and spend time with the father, and that the property orders of 30 June 2010 be set aside pursuant to s 79A of the Family Law Act 1975 (Cth). The wife also sought periodic spousal maintenance and an interim payment from the husband to be characterised at trial. On 8 September 2017 the wife’s application was transferred from the Circuit Court to this Court.

4. The wife’s application was heard by Macmillan J over eight days commencing on 19 April 2018. Her Honour accorded priority to the interim spousal maintenance application and on 22 May 2018 she made interim orders awarding the wife spousal maintenance of $4,333.33 per month: [2018] FamCA 352. The wife’s substantive s 79A application was the subject of orders made by her Honour on 24 October 2018: [2018] FamCA 856. In that judgment Macmillan J set aside the final property orders of 30 June 2010 pursuant to s 79A of the Act on the basis that it had been unconscionable for the husband to procure the wife’s consent to the 30 June 2010 orders and that in these circumstances there had been a miscarriage of justice. Her Honour also found that the parties had subsequently reconciled and that the circumstances of the relationship gave rise to an inference that they no longer intended to be bound by the 30 June 2010 orders. Her Honour made an award of costs in favour of the wife on a party-party basis, later fixed in the amount of $43,000, noting that she had earlier found the husband’s evidence to be both “evasive and disingenuous”, and that the way in which he had conducted the proceedings had caused them to become “protracted and costly”: [2019] FamCA 399, [13]-[14].

5. Macmillan J having set aside the 30 June 2010 final property orders pursuant to s 79A of the Act recused herself, the matter now comes before the Court for final determination of both the parenting arrangements and property adjustment orders.

6. On the morning of the first day of the trial the husband and the wife submitted an agreed minute of orders to be made in relation to parenting matters. On the second day of the trial the parties also reached agreement in relation to property adjustment orders and submitted an agreed minute of orders. The circumstances are such however that it is desirable to record why the Court was satisfied that the parenting orders to which the husband and the wife consented are in the best interests of the children, and why the property adjustment orders to which the parties have consented are just and equitable.  

Background facts

1. In her judgment of 24 October 2018 on the wife’s s 79A application, Macmillan J summarised the background facts as follows:

   5.The husband is 48 years of age and is in good health. He and his brother Mr I Imbardelli work together in a business which is operated under the umbrella of the Imbardelli Family Trust (“the Trust”). The trustee of the Trust is K Pty Ltd. The husband, his brother and his brother in law Mr M are the directors of K Pty Ltd. Although Mr M was only appointed as a director on 16 October 2017 he is the appointor of the Trust and has been the sole appointor since 1996 when the Trust was established. The shareholders of K Pty Ltd are the husband and his brother and they each hold one ordinary share. 

   6.The wife is 45 years of age.  The wife has had long standing mental health issues and is in receipt of a disability pension. Pursuant to the orders I made on 22 May 2018, the wife is to receive interim spousal maintenance of $1,000 per week. I will discuss the wife’s mental health history in more detail later in these reasons.

   7.There are three children of the marriage, D born in 2008 (aged 10), and twins E and F born in 2009 (aged 9). Pursuant to the orders made by consent on 11 December 2017 the children live with the father and spend time with the mother every Sunday, in week one from 10.00 am until 2.00 pm and in the other week from 10.00 am until 4.00 pm, telephone contact each Tuesday and Thursday and as otherwise agreed between the parties in writing.

   8.The parties were married in 2002. They separated for the first time in September 2009 after the wife alleges the husband punched her in the face and head. The wife deposes that she called the police and that they obtained an Intervention Order on her behalf as a result of which the husband was required to vacate the property in which they lived at B Street, Suburb C (“the former matrimonial home”). The wife remained living in the property with D, the eldest child of the marriage. The younger children were born prematurely and remained in hospital for approximately 100 days after their birth.  After being released from hospital on or about 23 September 2009 the twins lived with the wife and the eldest child in the former matrimonial home.

   9.On 2 October 2009 the wife filed an Initiating Application in the Federal Magistrates Court (as it then was) seeking, inter alia, parenting orders and property settlement. On 21 October 2009 following an interim defended hearing, orders were made for the children to live with the husband and spend time with the wife from 9.30 am to 4.00 pm each Monday, Thursday and Sunday. The orders required the husband to be in substantial attendance while the children were in his care and the wife to have an adult in attendance when the children were in her care.

   10.The wife deposes that following those orders being made she became increasingly distressed and anxious. She was at this time being treated by her psychiatrist Dr N and on 5 January 2010 she was admitted to P Hospital under the care of Dr N. 

   11.On 12 February 2010, final parenting orders were made by consent. Although the wife was in P Hospital at the time receiving psychiatric treatment, she came out of hospital that day and was brought to court by the husband to attend the hearing. The parties agree that they signed heads of agreement in relation to the property proceedings on the same day.  

   12.The wife was discharged from hospital on 9 March 2010, collected from the hospital by the husband and returned to live in the former matrimonial home. She agreed to the discharge of the Intervention Order she had obtained on 15 September 2009 in order for this to occur.

   13.On 30 June 2010, final property orders were made by consent. The wife was not represented on that day but she did attend her solicitor’s office the day before to sign the minute of orders in anticipation of the hearing. It is these orders that the wife now seeks to set aside. 

2. As well as making adverse findings in relation to the husband’s credibility, Macmillan J was critical of Mr I Imbardelli (the second respondent in this proceeding), and the husband’s mother: paragraphs 23-24. Her Honour also accepted the wife’s evidence that the incident which led to the husband and the wife’s first separation was him punching her on the left hand side of her head and ear, and in relation to the history of family violence more generally: paragraphs 31-33.

Current proceedings

1. On 26 March 2020 the wife filed what was described as a Further Further Amended Initiating Application. She sought, inter alia, parenting orders that the parties retain equal shared responsibility, that the children live with the father and spend time with her as agreed in writing between the parties upon the advice of the children’s treating health professional/s, that the father complete a parenting orders program, that both parents be at liberty to attend all school and extra-curricular events in which the children are involved, and that the parties be restrained from denigrating the other or discussing these proceedings in front of the children. She also sought property orders for a lump sum payment of $1,130,000 from the husband, an equalisation in their superannuation interests, spousal maintenance of $1,000 per week and orders for various properties to be sold in order to satisfy the payment of this lump sum.

2. The father filed a Further Amended Response to the wife’s application on 28 September 2020. Although he accepted that he and the wife should share parental responsibility, he sought to have the final decision making power in relation to school enrolments of the children. He also sought that the children live with him, that the children spend time and communicate with the mother in accordance with their wishes, that he complete a parenting orders program, that the mother continue to engage with and follow all reasonable advice of her psychiatrist, and that the parties be restrained from denigrating one another or discussing these proceedings in front of the children. In relation to property, the husband sought that he and the wife each receive 50% of some $425,000 held on trust following the sale of a property at Suburb J, and that they otherwise each retain their own property interests, including any interests in various companies or trusts and a part property settlement of $150,000 they had both received previously. Importantly, the husband would have retained all of his interests in the Imbardelli Family Trust.

3. The second respondent filed a Response to Initiating Application on 6 March 2020 in which he sought payment of $456,000, plus 10% interest, from the money held on trust following the sale of the Suburb J property, or alternatively that this money be paid out of any property or financial entitlement of the husband arising from these proceedings. In an affidavit filed on the same day the second respondent explained that this claim was by way of repayment of loans that he had previously made to the husband, primarily for the purpose of litigation funding. In submissions filed on 2 October 2020 the second respondent claimed that the orders he now sought were that a debt of $489,000 owed by the husband to him and certain other persons “be paid out in the same priority as the other accepted debts of the relationship”. He also sought that his costs, and the costs of certain other persons in connection with his participation in this proceeding, be paid by the wife.

4. The ICL did not file trial material, her counsel explaining that this was the result of negotiations overtaking the preparation of this material. Counsel for the ICL indicated to the Court at a mention the week before the trial that the ICL was actively taking part in negotiations and she had provided her views to the parties as to what orders would be in the best interests of the children. Counsel for the ICL appeared at trial and made oral submissions to which I will shortly turn.

Parenting arrangements

1. There have been three family reports prepared since 2017. The first two reports were prepared by Ms CC, Child and Family Psychologist, and are dated 8 December 2017 and 25 March 2019. The final report dated 9 September 2020 was prepared by Ms DD, Family Consultant.  

2. In her 9 September 2020 report Ms DD made a series of observations about the parental bond between the children and their mother, including as follows:

   60.The issue of the relationship between Ms Imbardelli and D, F and E, particularly from the perspective of the bond or “connection” between them, appears to have developed into the central theme of this parenting dispute, since the parent’s final separation in August 2017.

   61.Both parents individually reported D, F and E as displaying an almost total rejection of a relationship with their mother at this time, which appears to have only developed since the parents separated in 2017, as evidenced by an initial Family Report authored by Ms CC, in December 2017.

   62.In her initial report Ms CC evaluated Ms Imbardelli’s parenting capacity in the context of her mental health diagnosis and reported the interactions between Ms Imbardelli and the children as being appropriate and “a happy one”.  She noted the children were calm and becoming more animated and relaxed as the observation session progressed, with F having been observed sitting on her mother’s lap at one time.  When reporting on the children’s individual assessment Ms CC noted: D as displaying loyalty conflicts and was protective of both her mother and father; F was reticent to talk about her living situation and also displayed loyalty conflicts and anger towards her mother; and E displaying anger and stress and appeared to have a stronger attachment to her father, with a minimal response to her mother.  These observations and behaviours would be considered age and developmentally appropriate for the children given the circumstances at the time, being in the early stages of parental separation and experiencing significant transition in living arrangements.

   …

   65.By the time Ms CC conducted an updated Family Report, in March 2019, some 15 months later, she reported a significant change in the quality of interactions between D, F, E and Ms Imbardelli. She reported D, F and E individually reporting only in negative aspects of Ms Imbardelli and during their period of observation the children largely ignored Ms Imbardelli, instead focusing on their iPads, which had been given to them by their father at the conclusion of his observation session with them. Ms CC reported, during the observation Ms Imbardelli appeared anxious however was persistent and appropriate in trying to engage the children and noticed F being more polite to her than D and E.

   66.Ms CC evaluated the rejection of Ms Imbardelli by the children and concurrent alignment with the father, and appeared to be considering what had propelled the children to act in this manner at this time. Ms CC further reported her observation of the interactions between D, F, E and Mr Imbardelli, and stated that their interactions were highly elevated, the children were demonstratively affectionate, and the children appeared to be enmeshed with the father to the point of “inappropriateness”. Further in her report Ms CC reported there being a lack of connection and a level of disinterest between the children and their mother and noted the children having a dominant place in the family system and sensed the interactions between the mother and the children carried a sense of orchestration and manipulation, particularly from D.

   67.Ms CC also reported examples of situations where Mr Imbardelli has missed opportunities to act in a supportive manner towards the relationship between the children and Ms Imbardelli, including: arranging for F and E’s Holy Communion and excluding Ms Imbardelli from that; failing to put appropriate boundaries in place, in regards to D’s demanding behaviour, i.e. during the basketball match; and, minimising the children’s disordered behaviour whilst at their mothers as them being bored or blaming Ms Imbardelli for not engaging with them appropriately.

   68.Ms CC’s recommendation were that contact between children and the mother was contraindicated at this time, given that the distress the children displayed appeared valid. Ms CC concluded that given the level of alignment and enmeshment between the children and the father, a psychiatrist or family therapist be engaged in order to identify if time between the mother and the children should be considered at this time.

   69.Ms FF, Psychotherapist, provided six sessions of therapy for D, F and E, between July and December 2019 and reported similar thematic outcomes with regards to D, F and E rejecting of a relationship with their mother.  Ms FF reported the rejection of Ms Imbardelli extended to include the maternal family, and stated the children reporting only positive aspects of their father and the extended paternal family.

3. On the subject of whether the husband was prepared to support the children spending time with their mother, Ms DD noted:

   73.Although Mr Imbardelli reported being willing to support the children spending time with their mother, during his individual assessment it became evident that he lacks insight into the possible future risk to the children, individually, of them making the choice to not have a relationship with her at this time.

4. Evaluating the evolution of the children’s relationship with their mother in recent years and the significant evidence of alignment by the children with their father, Ms DD observed:

   99.Since the final separation in 2017 to the making of the second family report in March 2019, it appears the children have been exposed, either directly or indirectly, to a consistent message that their mother is no longer a safe person to be with.  It appears to the writer that it is improbable the children have learnt that message via repeated experiences of their mother actually being unsafe to be with or directly from their repeated interactions with her, given the limited amount of time that D, F and E have spent with Ms Imbardelli between 2017 and 2019. Therefore [an] alternative explanation would need to be considered.

   100.Family separation is a period of great transition, regardless of how well parents negotiate and cooperate regarding parenting arrangements.  It is universally recognised that children go through a period of feeling responsible for their parent’s separation on some level, regardless of the age or developmental stage during separation.  When a separation occurs quickly and in the context of parental conflict, as is the case for D, F and E, it can be experienced as highly traumatic, and as the separating parents continue to be in conflict, the children are left to make sense of the situation with limited resources i.e. limited capacity to understand the dynamics at play, their role in the situation and a recognition that they can relinquish their sense of responsibility to their parents. They are also in a position of having to make a choice with regard to who they perceive the safest parent to be with, and align with that parent.  This choice is not a conscious choice, rather is driven by a need to survive, therefore children are more likely to align with the parent perceived to be stronger and safer than the other.

   101.It appears that is what has occurred for this family. Mr Imbardelli’s personality tendencies towards aggression and control have prevented him placing the children’s need to have a meaningful relationship with their mother as a priority, and the children have been exposed to negative communications and inaccurate conversations about their mother, without having been able to experience an opposite understanding of her.  Since the end of 2017, to this present assessment, D, F and E have only had a one dimensional experience of their mother from the perspective of significant bias against her capacity to provide safety or a secure bond for the children to be themselves with.

   102.It is probably unfair to suggest that Mr Imbardelli, has purposefully and consciously orchestrated the situation to be as it currently is, however there are indications in his automatic behaviour that would suggest a large part of responsibility does lie at his feet.  Some examples being: him handing the children their iPad just prior to their observational session with their mother for the second family report; excluding Ms Imbardelli from D and E’s Holy Communion; excluding Ms Imbardelli from making decisions regarding the children’s school; and, refusing to trial alternative time spend arrangements, that may have assisted with rebuilding a relationship between the children and their mother individually. Ms CC further described the behaviour between the father and the children during that family report as enmeshed and bordering on inappropriateness. When considering Ms CC’s description of the children’s presentation whilst with their father, the current writer formed the opinion that the children were engaging in a complex display of security seeking behaviour whilst with their father, prior to spending time with their mother. The children would have been aware of the father’s feelings towards the mother, which were communicated via his behaviour, and non-verbal communication, and they felt compelled to demonstrate their loyalty to him at the time.

   103.An added extra complexity in this matter, which could influence the children’s perspective, is the ongoing unequal distribution of power in the relationship between Mr Imbardelli and Ms Imbardelli. There are many elements that place Mr Imbardelli in a superior position of what could be considered “legitimate power” in comparison to Ms Imbardelli, including: his tendency towards aggression, to a pathological level, which would contribute to Ms Imbardelli’s sense of insecurity; his superior position of finances and his ability to control those finances; Ms Imbardelli’s vulnerability with relation to her mental health diagnosis, which Mr Imbardelli has been aware of from the beginning of their relationship and has chosen to perhaps not respond to in a compassionate manner at this time; and the extended support available to Mr Imbardelli in relation to his position with these current proceedings, given he has the support of what appears to be a strong extended paternal family, as evidenced by him being able to reside with the paternal grandmother, who can assist him in providing care to the children, in a comfortable home environment. All of these, as well as other elements, combine to provide individuals with a sense of security and safety in the world, and if any element is limited or absent, that sense of security is difficult to maintain and even more difficult to project to others, in this case being the children.

   104.It is the writer’s opinion that if there was indeed no “connection” between the children and their mother, feelings of sadness, anger and disappointment would also be absent. Therefore the writer postulates that rather than there being no connection between them, the children’s lack of a sense of a connection is based on other people’s reality of their relationship with Ms Imbardelli. It appears the children have unconsciously acquired messages about their mother from an environment biased against her, by people that the children trust to keep them safe and secure in the world.

5. Ms DD concluded her report with the following paragraphs:   

   106.Unfortunately the current situation leaves the writer feeling conflicted with regards to recommendations for future parenting arrangements, given the strength of rejection towards Ms Imbardelli from D, F and E at this time. The process of repairing relationships can be a long and complicated one and would always need to be approached gently and sensitively, and stands the best chance of success when all parties are agreeable to the process beginning. What the writer believes is in the children’s best interest at this time is for them to enjoy a period of time where they do not feel the need to behave in a particular way towards their mother in order to remain secure in their relationship with their father. Each child is navigating through puberty at this time, which can be a difficult process for many young people regardless of the parent’s relationship status, therefore a period of stability is what is felt needed for the family moving forward. The writer is also acutely aware of the number of assessments and reports the children have attended in a short period of time, therefore would advocate for no further therapy occurring for several months, unless the children were requesting of an opportunity to explore their experiences further.

   107.Concurrent to this time of stability for the children, the writer believes it vitally important for Ms Imbardelli to access individual support to help her reach a place of acceptance that for the foreseeable future, in considering the best interest of the children, time spend arrangements are not pursued by her. It would also be beneficial for her to identify interventions that may be beneficial for her moving forward, in the event that either D, F or E take steps towards re-establishing their relationship into the future. The writer would also like for Ms Imbardelli to recognise that the current situation has not arisen as a result of her incapacity to provide D, F and E appropriate care, due to her own shortcomings or as a matter of choice by the children, rather it has developed over time in an environment of complicated interpersonal human interactions.

   108.For his part in influencing this current situation, Mr Imbardelli would benefit from attending individual intervention designed to inform him of the possible future risk faced by children who have developed a strong alliance with one parent to the point of rejecting the other. Some of these risks include a detrimental impact on the child developing a sense of self; of a child being more vulnerable to developing mental health conditions, such as anxiety, depression and problematic personality traits; the child being more vulnerable to drug and alcohol issues; as well as experiencing complex grief reactions and disruptions to their own intimate relationships into the future. Perhaps one of the most complicated outcome from these types of parental issues is a possibility that as the child reaches adult hood and has been able to understand their experiences of childhood from a different perspective, the child may eventually reject the parent who they were previously aligned to and reconnect with their previously rejected parent. This would likely occur from a position of choice and purpose rather than an incidental process of a biased parental relationships during their childhood. It is thought a Parenting Orders Program may be the most appropriate intervention to begin with M[r] Imbardelli accessing any further recommended intervention from there. It is also hoped that by accessing his individual intervention, Mr Imbardelli will be able to develop the insight required to recognise that the process a child goes through, to reach the point of rejecting a relationship with a parent, is not a natural human process to experience.

1. In her recommendations, at paragraph 112, Ms DD proposed that given the children’s total rejection of a relationship with their mother at this time that all spend time arrangements with her be suspended. She noted also that:

   It is of vital importance for [the mother] to be aware that the recommendation to suspended time between her and the children is in no way a reflection of her commitment or competence to parenting [the children].

2. As she had foreshadowed, Ms DD recommended that the husband be required to attend a Parenting Orders Program in order to gain a full understanding of the impact on the children that rejecting a parent at this stage of their development is likely to have on their future development, particularly as it relates to their developing a healthy sense of identity, purpose, and future intimate relationships. She also recommended that if over time the children are motivated to recommence their relationship with their mother the husband and the extended paternal family use their best endeavours actively to support the children in this regard.

3. To her very great credit the wife has accepted that Ms DD’s recommendations are in the best interests of the children. Accordingly, on Friday 2 October 2020, the parties provided consent orders in relation to parenting matters to Chambers.

4. At the commencement of trial on Monday 5 October 2020 the ICL made submissions as to why these orders, in all the circumstances, were in the best interests of the children. The ICL’s submissions were as follows:

   MS AGRESTA:   … the children’s orders should be finalised in terms of that minute of order that’s agreed to between the parties. But I do feel it’s important to say this, your Honour.

   HIS HONOUR:   Yes.

   MS AGRESTA:   That that order is only in the best interests of these girls in the sense that’s described by the family consultant, your Honour. In particular – and that’s the family consultant, Ms DD – in particular, at paragraph 106 of the updated family report. And your Honour, what paragraph 106 says – and I think it is worth reading.

   HIS HONOUR:   Yes.

   MS AGRESTA:   For the benefit of the parties.

   HIS HONOUR:   Yes.

   MS AGRESTA:   Is that this situation – the current situation, which is basically where you have these three children – three girls aged 12 and 11.

   HIS HONOUR:   Yes.

   MS AGRESTA:   Rejecting their mother. About that situation, the family consultant said that she feels conflicted with regard to recommendations for future parenting arrangements given the strength of the rejection towards Ms Imbardelli by D, F and E at this time. Because that’s what it is – we have a rejection of a relationship by these little girls.  She says:

   The process of repairing relationships can be a long and complicated one and would always need to be approached gently and sensitively.  And it stands the best chance of success when all parties are agreeable to the process beginning. 

   She goes on to say that:

   The writer believes that is in the best interests of the children, at this time, for them to enjoy a period of time where they do not feel the need to behave in the particular way towards their mother in order to remain secure in their relationship with their father.

   She goes on later to say, your Honour, that:

   The writer is also acutely aware of the number of assessments and reports the children have attended in the recent – in the short period of time – and therefore would advocate no further therapy occurring for several months unless the children were requesting of an opportunity to explore their experiences further.

   So, your Honour, as I say, it’s in the best interests of the children for this process to be left for now. That’s not the same thing as saying that these orders represent essentially the best interests of these children, because what’s really in the best interests of these children is for them to have a meaningful relationship with both of their parents. And it is not a normal or natural process of the development for children of this age to reject a relationship with their parent. That is not normal.

   HIS HONOUR:   No.

   MS AGRESTA:   And the father can read that in paragraph 107 or 108 of the family report – that that’s not a normal process.  And it is – as you said last week – it is appalling, your Honour, that that situation is occurring here in this case. So, your Honour, the court and particularly the father, needs to acknowledge and pay tribute to the mother for the very difficult and very courageous decision that she has made today in agreeing to the orders that she has. Because those orders require her for now to walk away from a relationship with her daughters. 

   That decision, your Honour, can I say to the mother is on the basis of the report that the court has before it now, a child focussed decision, and she’s to be congratulated for being able to see that and to make that decision.  Because there is really nothing for her in these orders, your Honour. These orders are in every respect child focussed and aimed towards the best interests of these children in really awful circumstances.  So, again I say that it’s a tribute to her that she has been able to put aside her own interests and her own desires and understand that at the moment, this is the best that we can do for those girls.

   HIS HONOUR:   Yes.

   MS AGRESTA:   In the hope that at some stage in the future they will have a relationship with her. And your Honour, I say also that the father needs to respect and acknowledge that decision that she makes. And the father needs to understand, your Honour, that there are no wins and there are no winners in regard to the parenting dispute here today, your Honour. There are only losers and the children particularly are losing. And he needs to see, your Honour, that there are very great risks for these children in the situation remaining as it is – that is to say that these children go into adolescence without the relationship with their mother. 

   And if the family consultant, your Honour, is right at paragraph 36 of her report, where she says that her overall impression of the father is that he believes that the children don’t need a relationship with their mother and that he can provide – he and his family – can provide all that they need, then your Honour, if that assessment is right, the father needs to have a really good, hard look at himself and have a really good think about what he does from now on to ameliorate that situation. Because the fact is, these children do need their mother and there are risks to them – there are risks to their relationship with their mother, and there are also risks to his relationship with these girls at some point in the future if that situation is not changed. And so, your Honour, as I say, I just wanted to just remind the father that really at this point, in many ways, the responsibility now rests on his shoulders to fix this situation. He has the responsibility to develop some insight into what has gone on – some insight into his responsibility for the predicament that we find ourselves in and that these girls find themselves in. And to make the changes that need to be made. He needs to read that report and he needs to repeat – he needs to read it closely and needs to read it repeatedly, your Honour, so that he understands what is happening here and what needs to be done to change it. 

   And he does – he needs to watch everything he says and everything he does, your Honour, from here on to make sure that these girls understand that they need to have a relationship with their mother and that everybody believes that that’s the case, your Honour. And that it's not a situation where they can just walk away from her. My instructor will be speaking to these girls to explain these orders to her and I can tell you, your Honour, that Ms Lonergan will tell these girls that their mother loves them and that their mother has not walked away from them and that their mother has not abandoned a relationship with them. She will tell them also, your Honour, that she believes that they should be seeing their mother, even though these orders provide otherwise.

   So, she will tell them that it is in their best interests to see their mother at some stage in the near future hopefully to try to begin a process of reconciliation – of repair of that relationship with their mother. And that their mother, as I say, has not abandoned them and is there for them.  She will also tell them, your Honour, that this decision is not made by them – that these orders are not – these children haven’t made this decision. Because that’s an awful burden for these little girls to have to shoulder – to think, your Honour, that in fact they’re not having a relationship with their mother because they’ve said they don’t want one. 

   Ostensibly they might think that. Superficially they might think that. They might think that that’s what they want, but they don’t have the cognitive capacity really to understand the ramifications of that. And it’s not good for them to have to walk away thinking that they’ve made this decision. So, they’re the messages that my instructor will send, your Honour, to the children when she tells them about this decision. And as I say, the overriding message that I think needs to be given today is that the father needs to – as the resident parent – he needs to now shoulder the responsibility that’s on him to fix this situation as much as he can. 

   And there are aspects of those orders that provide for avenues and ways by which these children can have their relationship repaired and he is to act in the spirit of those orders, your Honour. In everything he does and everything he says, he needs to give the right message to these children – that their mother loves them, misses them, and that they need to have a relationship with her. And I hope, your Honour, that he develops that insight and acts in good faith and with bona fides to ensure that that happens in the future. And I wish all the family good luck, your Honour.

   HIS HONOUR:   Well look, Ms Agresta, frankly I accept everything you say in relation to what the husband needs to do and indeed [about] the appalling and lamentable situation that has unfolded here. Can I just ask you, Mr Sheen, it’s not apparent to me – I hope that this is the case, but it’s not apparent to me that the husband is actually listening to this.  Is he one of the people who is in on this Teams hearing at the moment?

   MR SHEEN:   Your Honour, I thought that he was, but perhaps if he could identify himself if he is, your Honour.

   Mr Imbardelli:   Yes, I’m here, your Honour.

   MR SHEEN:   That’s him, your Honour.  He is here.

   HIS HONOUR:   Yes. Yes. All right. Well look, thank you Ms Agresta.  I do, having said that I accept everything you say, what I mean by that really is that I accept the exhortations that you’ve expressed as to the need for the husband to take all of this on board and act consistently with the spirit of the orders. …

   …

   MS AGRESTA:   [The orders] are only as good as the parties want them to be. I mean the parties do need to – and in this case, particularly the father because he’s going to have the responsibility. I mean, if the father – if the father really takes on board what’s said in that family report, your Honour, and understands the real risks that are inherent in this situation for his children, then one hopes as a good parent, your Honour, that he will not just engage in a box ticking exercise. That he will really seek to understand his contribution to this situation and understand how he can – how he can change it. 

   
   

   …

   MS AGRESTA:   So, I mean at some point in the future, it may well be that – that, you know, if circumstances change – change significantly, the parties could come back. But one hopes, your Honour, that the solution for this family is going to be found in these girls’ advancing age and coming to some sort of understanding – hopefully with the help of both their father and their mother – that this situation is not good for them and that they’re children who need both their parents and that these are really significant – significant matters that are not really decisions for them to make and that they need to find another way.

   …

   MS AGRESTA:   The point, your Honour – as I say, I just wanted to say that the point of this discussion, I think – hope – or part of the point of this discussion, your Honour, is really to make the father understand as the resident parent of these girls – to make the father understand – how important it is, your Honour, that these children do have a relationship with their mother. And that we’re not just wiping our hands of this case as being too difficult.

   HIS HONOUR:   Yes.

   MS AGRESTA:   That that’s not what this is about. This is a – we seriously considered whether this is the right way forward. And that really, so much depends on him to do the right thing by these girls.

   …

   MS AGRESTA:   And he needs to understand that.

   HIS HONOUR:    Yes. Well as I say, I accept that submission in its entirety and it won’t go unrecorded, Ms Agresta, that submission. What I propose to do in this case, unlike what would usually occur in circumstances where the parties have submitted consent parenting orders, is I will deal in the ultimate judgment with these orders. And the judgment of the Court will give expression to the submissions that you have just made and also to the Court’s imprimatur of the sentiments that they contain. So, there will be a record of this going forward.

5. For completeness it is desirable to record the following exchange between counsel for the husband and the Court in response to the ICL’s submissions:

   MR SHEEN:   Your Honour, I don’t want to put the salt into any wounds by saying anything about conflicts in any – in the evidence etcetera about how he says it comes to this situation. All I say is that, in my view, the orders do provide a way forward for the mother to have contact with the children and to develop a relationship over time. These children are still quite young, but as they grow and they see her at particular events and they have the opportunity to approach her – as they have the opportunity to receive emails, gifts and the like – that hopefully, together with his attendance in the program and her continual addressing of any mental health needs that she has, that they will be able to form a relationship and that would be in their best interests. But your Honour, I don’t think there’s a great deal else I can say ‑ ‑ ‑ 

   HIS HONOUR:   Your client accepts, does he, Mr Sheen, the important part that he will have to play in this process?

   MR SHEEN:   He must, your Honour, because he accepts that he’s going to do the parenting program. He accepts that that’s part of something that needs to happen and he must play a role – that’s clear, your Honour.

   HIS HONOUR:   And he shoulders that burden, does he? He accepts that he needs to do that?

   MR SHEEN:   He’s the parent with whom these children will live and it’s up to him to ensure that he encourages a relationship with the mother. In his view, he feels that he does, but he must do that. And there’s no doubt about it, your Honour.

   HIS HONOUR:   And he accepts – he accepts that he must do that, does he?

   MR SHEEN:   Well my understanding if that he does, your Honour. He does accept that he has to encourage a relationship and that’s right, your Honour.

6. Having regard, in particular, to the submissions of the ICL I was persuaded that the proposed orders were in the best interests of the children for the purposes of s 60CA of the Act and I made orders in accordance with the consent minute of orders submitted to the Court. As the ICL submitted, the husband bears a heavy responsibility. It is to be hoped that he will come to understand the part he has played in matters moving to this point, and that he will act in the best interests of his children by attempting to salvage their relationship with their mother. The Court recognises the child focused attitude which the mother has adopted in the most unfortunate circumstances of this case.

Property settlement

1. After the conclusion of the first day of the trial and the parties’ openings in relation to property matters the proceedings were adjourned for the parties to undertake discussions. Late on day 2 of the trial the parties produced an agreed minute of orders in relation to property matters. In all the circumstances it is desirable to record the submissions of counsel for the mother on the question of the justice and equity of the agreed orders for the purposes of s 79 of the Act. They were, relevantly, as follows:

   MR HUTCHINGS:   Now, I submit that the result is right at the bottom of the range of just and equitable outcomes and I will take you to the further matters which need to be considered when one looks at the justice and equity of it. But globally looking at the ups and the downs, it is right at the bottom of the range. …

   HIS HONOUR:   Yes. I accept that it is pretty much towards the bottom in that respect.

   MR HUTCHINGS:   Yes.  Now what – what needs to be factored in and importantly what my client would ask you and what – the things that she has considered are that the – when one looks at the – the flipside of it, although on a percentage sense, the husband does retain the vast majority by way of either of financial resource or asset or the majority on any view I would suggest are those things. Basically everything that he would otherwise retain would appear, at law, to have certain strings attached to it. There are assets sitting within a trust and held by corporate entities with other directors, other shareholders and there are capital gains tax liabilities which would appear to attach to – if things needed to be sold, and of course our case was they didn’t necessarily. 

   But if matters – if things needed to be sold there would be certain tax. So the husband’s readily identifiable liquid assets are available assets are – although in quantum, when one looks at an asset pool favourable that the - it would be fair enough to consider that they were more difficult to access and that he, at this point at least, whilst he has had a significant income and in my submission would likely to over the next few years as the rollout continues, he does have the financial responsibility for the three children at the moment. And this is the gravamen of the submission. My client is wholly aware that the (a) the husband is of the view that my client has been somewhat rapacious in terms of her property desires and that has been reflected ‑ ‑ ‑ 

   HIS HONOUR:   Sorry just start that again. Your client is of the view or accepts what?

   MR HUTCHINGS:   Is of the view that the husband believes that her property claim is – is rapacious.

   HIS HONOUR:   Yes.

   MR HUTCHINGS:   Now – as to what – I have, of course, in my submission take great issue with that but that has been, in my respectful submission, his view. And the children – the financial support for the children, now this quite aside from their living arrangements and the like, given the parties – given his role as the breadwinner, he remains responsible financially for those three children. And my client is of the view that this outcome is just and equitable taking into consideration all matters. Most particularly the fact that with any luck the children, one day, might learn that she accepted the lower end of the range so that they would have the greater benefit of whatever assets, and the like, were – were available. 

   And that in the hope, and we hope it’s not a vain hope, that if the husband can see that she has not been greedy, that perhaps that gives some further scintilla of hope that there might be a change of attitude in terms of the ability to encourage the girls relationship with her – with my client. … It’s my client’s desire that your Honour makes these orders and finalises matters. 

   It is also relevant to bear in mind that the husband previously filed an appeal, although it was withdrawn. That there were grave difficulties in enforcing orders for sale of property and part property and spousal maintenance and there is some great hope again, notwithstanding, there is a payment to be made with default provisions included within these orders that the chances of us needing to come back to court to enforce and certainly facing appeals of the like, are greatly minimised and that gives a much higher chance that further legal costs will be avoided and that the proceedings can truly, finally come to an end.

   HIS HONOUR:   Yes.

   MR HUTCHINGS:   So there – there are many matters which have gone into the consideration. Now, it’s important that your Honour indicated that you intended to deliver a short judgment, I think, in relation to the children’s aspect.

   HIS HONOUR:   Yes.

   MR HUTCHINGS:   We, of course, can’t compel you to do so, but my client would be – on her behalf, I’ve been asked to make that request again in case there was any chance it fall by the wayside.  She’s seeing it ‑ ‑ ‑ 

   HIS HONOUR:   No.  She can – she can rest assured it has not fallen by the wayside. In fact, the process has commenced in the course of today, albeit, it probably won’t be released in the next day or two, but she will get it. 

   MR HUTCHINGS:   Thanks.

   HIS HONOUR:   And having regard, I think, to what you’ve just said about this being at the lower – lower end of the range, which I accept, it may also be appropriate that there be something said about that too.

   MR HUTCHINGS:   Yes. And I was going – you’re ahead of me and that was where that was going, if your Honour felt it was appropriate, it’s the sort of thing, given the purpose of that judgment, that may be of some assistance in years to come to – to those children.

   HIS HONOUR:   Yes.

   MR HUTCHINGS:   And I – I would, or my client – well, it’s not for me to really say this as – but, I would say that my client, and in my submission, has shown yet greater child focus and family focus in – in a genuine desire to cause as little harm as possible and accept the cash payment and she intends to try and buy a – a modest residence and somewhere where she can live and, with any luck, where the children can come and visit her. And she will use that and keep it as, you know, some form of security together with her disability pension and, with any luck, be happy within those circumstances, it being perhaps just enough, she thinks, to be able to afford to – to meet those – those desires and those understandable desires that she has for her – for her life. 

   So it’s never a touchpoint and, of course, when clients say to me, “Well, hang on, I can’t buy house.”  I say that’s not the test, that’s normally when they’re reaching for the stars. When someone is accepting the lower end of the range, in my respectful submission, it becomes relevant to look at what it means to them in the – at the end of the day, and my client has had some time to think about this. Negotiations have been ongoing since, well, for some time, but in earnest since Sunday night and she is clearly, in my view, content with this and wants to see it ended on these terms for the reasons that I’ve outlined. 

   HIS HONOUR:   Well I was going to ask you about where this leaves her in a practical sense, in – in terms of being able to put a roof over her head and attend to those sorts of things. And I understand you to be saying to me, Mr Hutchings, that she thinks that she can probably manage to do that with this $667,000 payment.

   MR HUTCHINGS:   Yes. That’s – yes. Okay. It’s modest but the answer ‑ ‑ ‑ 

   HIS HONOUR:   Well, it will be less than 667 in her hands, presumably, because of her outstanding legal fees.

   MR HUTCHINGS:   Outstanding legal fees – that’s right, there will be less than that in her hands and you can probably safely deduct about 100 from that, net of the remaining part – recent part property, and the like, at something of that order. So that - but she’s aware of that and, importantly, I certainly – well, your Honour – your Honour heard me open, you heard me say I – I say it’s at the bottom of the range. There is no doubt my client … seeks that these orders be made.

1. Although the amount for which the wife has been prepared to settle is at the lower end of the range, for the reasons submitted on her behalf I am prepared to accept that the alteration of property interests represented by these orders is just and equitable for the purposes of s 79 of the Act, and I will make orders in accordance with the agreed minute. Once again, the wife’s child focused reasons for agreeing to the alteration of property interests in these terms is to be regarded as commendable.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 5 November 2020.

Associate:     

Date:              5 November 2020